[Cite as State v. Railey, 2024-Ohio-5502.]
IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NO. C-230559 TRIAL NO. B-1904865 Plaintiff-Appellee, :
vs. :
DEMETRIUS RAILEY, : OPINION
Defendant-Appellant. :
Criminal Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: November 22, 2024
Melissa A. Powers, Hamilton County Prosecuting Attorney, and Keith Sauter, Assistant Prosecuting Attorney, for Plaintiff-Appellee,
Kessler Defense LLC and Stephanie Kessler, for Defendant-Appellant. OHIO FIRST DISTRICT COURT OF APPEALS
KINSLEY, Judge.
{¶1} Defendant-appellant Demetrius Railey appeals his conviction, following
a jury trial, of rape of a child under 13. Railey challenges the admissibility of certain
statements at trial and statements made by the State during closing arguments. After
a careful review of the record, we affirm Railey’s conviction.
I. Factual and Procedural History
{¶2} On September 5, 2019, Railey was charged in a three-count indictment
with rape of a child under 13 by force in violation of R.C. 2907.02(A)(1)(b), a felony of
the first degree; abduction in violation of R.C. 2905.02(B)(1), a felony of the third
degree; and tampering with evidence in violation of R.C. 2921.12(A)(1), a felony of the
third degree.
{¶3} Railey invoked his right to a jury trial on the charges. But prior to trial,
he filed a number of motions seeking to exclude specific pieces of evidence from the
jury’s consideration.
{¶4} First, on July 5, 2021, Railey filed a motion in limine to exclude from
the trial recorded statements he made while in custody, as well as a motion to suppress
statements he argued were obtained in violation of Miranda. Then, on September 10,
2023, Railey filed an additional motion in limine to prevent the State from presenting
body-worn camera (“BWC”) footage at trial. The BWC video contained statements
made by the child’s mother, who had since passed away, as well as statements by the
child about the sexual assault. Railey argued that the child’s mother’s recorded
statements violated his Confrontation Clause and due process rights. Railey
additionally moved to exclude medical records that included unrelated allegations of
sexual abuse perpetrated against an additional person.
{¶5} On September 11, 2023, the trial court conducted an evidentiary hearing
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on Railey’s motions. Regarding Railey’s motion to suppress his recorded custodial
statements, the trial court denied the motion, finding that Railey voluntarily provided
information to police and therefore did not need to be Mirandized. But the State and
defense counsel reached an agreement as to what would be excluded from Railey’s
recorded statements, obviating the need for a ruling on Railey’s initial motion in
limine. The State also agreed to redact the medical records to remove references to an
additional alleged victim. Regarding Railey’s motion in limine to exclude the BWC
video containing the child’s mother’s statements, the trial court denied the motion. It
held that the statements were admissible as excited utterances despite the mother’s
unavailability. It also held that statements made by the child on the BWC video were
admissible because she was available for cross-examination.
{¶6} On September 13, 2023, the matter proceeded to trial. The State called
nine witnesses at trial (1) the child, (2) the child’s aunt (“the aunt”), (3) Officer Brian
Kneller, (4) Jamie Brauley, (5) Megan Miller, (6) Officer Charlene Morton, (7)
Detective Dana Jones, (8) Devonte Herdeman, and (9) Hallie Dreyer.
{¶7} During her testimony, the child was asked to recall the events of May 4,
2019. She testified that, at the time, she lived in the Hawaiian Terrace apartment
complex with her mother, Railey, and four siblings. She testified that, at the time of
the incident, she was 12 years old, but was now 17. She explained that Railey was her
mother’s boyfriend.
{¶8} The child testified that, on the day of the incident, she woke up at about
eight o’clock in the morning. When she woke up, Railey left to walk her mother to
work. The child explained that when Railey returned, he began to have a conversation
with her. During that conversation, Railey asked her “if he could do something with
[her] before he married my mom.” The child testified that she was confused and that
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the conversation eventually stopped when she went to help her siblings and Railey
went downstairs to where her mother’s bedroom was.
{¶9} The child testified that, after Railey went downstairs, he called her to
come down. When she went downstairs, Railey continued the previous conversation,
saying that “he wanted to lick on somebody[.]” She explained that she did not
understand what he was talking about or why he wanted to do that to. She testified
that Railey tried to convince her to have sex by stating that he had started having sex
at nine years old.
{¶10} The child testified that Railey then pushed her on to the bed, grabbed
both of her arms, took one of her legs out of her tights, pulled down her panties, and
placed his mouth on her vagina. She testified that Railey told her that if she did not
comply, she would not get her phone back and would remain on punishment. The
child explained that she felt she needed to comply. She explained that Railey stopped
when he heard her siblings coming down the steps.
{¶11} The child recounted that after Railey stopped, he told her to pull her
pants up and to take a bubble bath, which she did. She testified that, after she took a
bath and stayed at the house for a little while, she eventually ran away to her aunt’s
house who lived a parking lot over. The child then told her aunt what happened.
According to the child, her aunt called the police then retrieved her other siblings. The
child recalled that her aunt’s boyfriend picked up her mother from work and brought
her home. The child then told her mother what happened. She testified that her
mother then confronted Railey. According to the child, Railey denied harming her and
then left. The child testified that the fire department took her to the hospital, where
she received a medical exam, and vaginal swabs were taken.
{¶12} The aunt testified that she was not the biological aunt of the child but
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had been the child’s mother’s best friend since seventh grade. She explained that she
knew Railey as “Meechy.” The aunt felt the relationship between the child’s mother
and Railey was moving too fast. The aunt testified that, on the day of the incident, the
child’s mother was pregnant with Railey’s child, to whom she eventually gave birth,
but that the child’s mother had since passed away. On the day of the incident, the aunt
recalled being woken up by someone banging on her door. When she got to the door,
she saw that it was her niece. The aunt testified that the child was hysterical and told
her that Railey had inappropriately touched her.
{¶13} After speaking with her niece, the aunt called 911. The aunt’s 911 call
was played by the State and admitted into evidence as State’s exhibit 1. The aunt
testified that, after she got off the phone with 911, she went to the child’s mother’s
house to retrieve the other children. When she arrived, Railey was there. She testified
that when she attempted to get the children to leave with her, Railey said no and
grabbed her, and she hit him. The aunt explained that she took the children and went
back to her house.
{¶14} At the conclusion of the aunt’s testimony, the trial court took a brief
recess. During that recess, the parties stipulated to the medical records that would be
admitted into evidence. Defense counsel also renewed his objection regarding the
playing of the BWC video. The trial court once again overruled the objection.
{¶15} Kneller testified that in May 2019 he was employed with the Cincinnati
Police Department. He arrived at the scene and was wearing a BWC. The State moved
to play and admit Kneller’s BWC video as State’s exhibit 2.
{¶16} At the 4:38 mark of the BWC video, a woman who appeared to be the
child’s mother opened the door and seemed out of breath. She asked the officer to
come through the home, to the downstairs, and to the back. As Kneller moved through
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the house, the child’s mother was crying and moaning. At the 5:11 mark, Kneller
arrived at the back door of the apartment where the fire department was gathered
outside with the child. Kneller then walked away from the apartment because he had
been told that Railey fled from the home. At the 6:59 mark, Kneller returned to the
apartment. At the 7:38 mark, the child’s mother received a phone call. At the 7:45
mark, while on the phone, the victim’s mother stated, “[H]e licked on my baby.” A few
second later, she stated, “I know she not lying.” Kneller then asked her to step outside
the apartment to complete her phone call.
{¶17} Later in the BWC video, the child described the events that had occurred
earlier in the day. She indicated that Railey had licked her vagina and then made her
shower afterwards. She was tearful and visibly upset.
{¶18} Brauley, a social worker at Cincinnati Children’s Hospital, testified that
she worked in the emergency department and spoke with the child’s mother for a few
minutes on the day of the incident. She explained to the child’s mother that personal
crimes officers had responded to the emergency room so she was unable to conduct a
full interview as she normally would have. She testified that she observed the
interview conducted by officers and she used that information to help inform the staff
conducting the medical exam.
{¶19} Miller testified that she is a pediatric sexual assault nurse examiner
(“SANE”) with 18 years of experience and that she is employed by Cincinnati
Children’s Hospital. Miller testified that she conducted a SANE exam on the child in
May 2019. As part of the exam, she swabbed the child’s cheek for a DNA reference and
collected swabs from inside and outside of the child’s vagina.
{¶20} Morton, a member of the Cincinnati Police Department, explained that
in May 2019 she worked as part of the Criminal Investigation Section Major Offenders
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Unit in personal crimes. She testified that the scene was being secured by uniformed
officers when she arrived. She testified that she herself collected a fitted sheet, a pair
of black and white leggings, pink underwear, and a green toothbrush belonging to
Railey.
{¶21} Jones testified that she was a detective in the Cincinnati Police
Department Personal Crimes Unit and the lead detective on the case. Jones testified
that she arrived at the hospital to interview the child. She explained that initially she
talked to the child’s mother separately because she was so upset. Jones then
interviewed the child about the incident. She testified that she also interviewed Railey,
a recording of which interview was played in court and marked as State’s exhibit 5.
Jones further explained her role in processing the rape kit, which was sent to the
Bureau of Criminal Investigations (“BCI”) to be processed for evidence. According to
Jones, the vaginal swab came back positive for acid phosphatase, which is a bodily
fluid. Jones provided a buccal swab collected from Railey to compare. On cross-
examination, Jones testified that acid phosphatase would return positive for vaginal
secretions, semen, bodily fluid, or some bacteria. She also testified that she knew there
had been a request for Y-STR testing, which is a male chromosome test.
{¶22} Herdeman, a forensic scientist in the DNA unit at BCI, was deemed an
expert in the field of DNA analysis without objection. He testified that vaginal,
anal/perianal, and oral samples collected from the child were positive for acid
phosphatase, which is an enzyme found in bodily fluids. He further testified that the
child’s underwear was negative for acid phosphatase and that the vaginal and
anal/perianal samples had no DNA profile foreign to the child. He explained his
recommendation that the case be sent for additional Y-STR testing. According to
Herdeman, there was a high quantity of male DNA in the sample, and Y-STR testing
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only tests for the male DNA present in a sample. Herdeman also testified that it is not
expected to see acid phosphatase in touch DNA.
{¶23} On cross-examination, Herdeman admitted that DNA can be
transferred onto worn clothing, which is called wearer type. He also testified that if
unrelated individuals touched a bed sheet where someone else was sleeping, there
could be an indirect transfer of DNA. According to Herdeman, this would be more
likely in the case of a bodily fluid. Herdeman also testified that the presence of acid
phosphatase in a sample did not mean that the sample originated from saliva rather
than vaginal fluid.
{¶24} Lastly, Dreyer, currently a laboratory supervisor in the BCI DNA unit,
testified that she was a forensic scientist in the DNA unit at the time of the incident.
She was permitted to testify as a DNA expert. Dreyer explained that Y-STR testing is
a male-specific DNA test. She testified that touch DNA would not react with acid
phosphatase activity. She further explained that acid phosphatase is found in its
highest concentration in semen but can also be found in other bodily fluids such as
saliva and vaginal secretions. She further testified that a male DNA profile was
obtained from the vaginal samples and that “the Y-STR DNA profile is consistent with
Demetrius Railey * * * the Y-Chromosome Haplotype Database of 29,275 profiles and
is not expected to occur more frequently than one in every 1,506 male individuals in
the U.S. population.” She further explained that “a statistic is calculated to estimate
what is the rarity in the general population to give weight to, what are the odds that a
random individual would be included as well in this same profile.” Regarding the
anal/perianal samples, Dreyer testified that male DNA was detected; however, it was
not of sufficient quality for comparison, meaning that she could not confidently
include or exclude any particular person.
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{¶25} On cross-examination, Dreyer testified that the DNA found was not
consistent with what she typically sees with a touch sample. She testified that she
could not definitively say what the source of the DNA was or how the DNA was placed
in the child’s vaginal area.
{¶26} Following the testimony of Dreyer, the State rested its case. Defense
counsel made a Crim.R. 29 motion for an acquittal, which was denied. Defense rested
without calling any witnesses and renewed its Crim.R. 29 motion.
{¶27} The parties then presented closing arguments. In its closing, the State
argued that Railey’s DNA was found in the folds of the child’s labia and that he was
therefore guilty of the charges. The defense argued in its closing that the DNA was
found on the child due to secondary DNA transfer. In other words, the defense did not
dispute that Railey’s DNA was present on the child. Rather, the defense disputed the
State’s theory as to how Railey’s DNA arrived there.
{¶28} Following closing arguments, the jury deliberated for a little over four
hours and returned guilty verdicts for the rape and abduction charges and a not guilty
verdict regarding the tampering with evidence charge.
{¶29} On October 16, 2023, the trial court held a sentencing hearing. On the
rape charge, it sentenced Railey to 25 years to life. It then merged the abduction
charge with the rape charge. Railey was also classified as a Tier III sex offender.
{¶30} Railey timely appealed.
II. Analysis
{¶31} On appeal, Railey raises three assignments of error. First, Railey argues
that the trial court erred by admitting the recorded statements of the child’s mother
because they were inadmissible hearsay and violated his Sixth Amendment right to
confront the witness against him. Second, Railey argues that the State made improper
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statements during closing arguments that prejudicially affected his right to a fair trial.
Third, Railey argues that the errors in his first and second assignments of error,
collectively, deprived him of a fair trial.
A. Recorded Statements
{¶32} In his first assignment of error, Railey argues that the trial court erred
in admitting the recorded statements of the child’s mother on the BWC video. Railey
presents this assignment in two separate parts. First, Railey argues that the child’s
mother’s statements were not excited utterances and were therefore inadmissible
under the Ohio Rules of Evidence. Second, he argues that admitting the statements of
the child’s mother violated his Sixth Amendment right to confront the witness against
him, because she had passed away by the time the trial began.
Excited Utterance Exception
{¶33} “[W]e review challenges to the admissibility of hearsay statements
under an abuse of discretion standard.” State v. Smith, 2019-Ohio-3257, ¶ 15 (1st
Dist.). Evid.R. 803(2) sets forth a hearsay exception for statements that are excited
utterances, which are statements “relating to a startling event or condition made while
the declarant was under the stress of excitement caused by the event or condition.”
See State v. Carter, 2017-Ohio-7443, ¶ 8 (3d Dist.), citing Evid.R. 803(2). Statements
are permitted under the excited utterance exception to the hearsay rule when “1) there
is an event startling enough to cause ‘nervous excitement’ in the declarant, 2) the
statement, though not strictly contemporaneous, was made before the declarant had
time for the nervous excitement to subside, 3) the statement related to the startling
event, and 4) the declarant personally observed the startling event.” Id. at ¶ 17.
{¶34} Railey takes issue with several statements made by the child’s mother
on the BWC video, including: (1) “Meech, he just sexually assaulted my daughter”; (2)
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“He licked on my baby”; (3) “My baby had to run from the house”; and (4) “I know
she’s not lying.” Railey specifically challenges whether these statements meet the
personal observation requirement of the excited utterance test. He argues that the
child’s mother did not personally observe the sexual conduct inflicted by Railey on the
child and that her statements about that event therefore fall outside of the excited
utterance hearsay exception. In doing so, Railey explicitly defines the startling event
as the rape rather than as the child’s disclosure of the rape.
{¶35} In support of his position, Railey relies on State v. Smith, 2002-Ohio-
6659. In Smith, Smith and Frye were dating. Id. at ¶ 1. Smith lived with Frye and her
two-year-old and six-month-old daughters. Id. One evening, Frye woke to Smith
standing next to her bed and her six-month-old daughter dead. Id. at ¶ 4. Frye left
the house, went to a neighbor’s home, and told them that Smith killed her baby. Id. at
¶ 5. At trial, the State introduced one of the neighbor’s testimony as to what Frye said.
Id. In considering the application of the excited utterance exception to Frye’s
statements to the neighbor, the Ohio Supreme Court held that what Frye told the
neighbor was inadmissible because Frye did not personally observe Smith kill her
daughter. Id. at ¶ 43-44. It therefore determined that the startling event was the
alleged criminal conduct, rather than Frye’s realization of the criminal conduct. Id. at
¶ 44. But it held the trial court’s error in admitting Frye’s statement was harmless,
with no analysis as to why that was the case. Id.
{¶36} For its part, the State calls to our attention the Ohio Supreme Court’s
decision in State v. Jones, 2012-Ohio-5677, in which it reached the opposite
conclusion from Smith. In Jones, the defendant confessed to his wife that he had
committed a murder. Id. at ¶ 10. Less than an hour later, the wife disclosed the
information to a friend. Id. at ¶ 10-11. The friend’s testimony at trial as to the wife’s
11 OHIO FIRST DISTRICT COURT OF APPEALS
disclosure was challenged as inadmissible hearsay. Id. at ¶ 130-131. On appeal, the
Ohio Supreme Court held that the husband’s confession to the wife was the startling
event, rather than the husband’s commission of the crime. Id. at ¶ 167. The court
thus held that the statements made by the wife qualified as excited utterances and that
she did not have to personally witness the murder for her statements about the
husband’s confession to be admissible as excited utterances. Id.
{¶37} Jones and Smith are admittedly difficult to square. Smith suggests that
the startling event is the crime itself, whereas Jones suggests that the realization of the
crime is what triggers the excited reaction. The two cases reach opposite answers as
to the question of whether an individual must personally observe the event for
statements to qualify as excited utterances.
{¶38} We need not resolve this tension in the law here. Even if the admission
of the child’s mother’s statements on the BWC video constituted error because she did
not personally observe Railey’s conduct, that error was harmless. “An error is
harmless if after [the improperly admitted] evidence is removed, the outcome of the
trial would be the same because the remaining evidence is overwhelming.” State v.
Rasheed, 2023-Ohio-906, ¶ 20 (1st Dist.).
{¶39} We have no trouble concluding that the jury would have convicted
Railey without the child’s mother’s statements. The child herself testified at trial as to
Railey’s conduct, and her statements on the BWC video were largely consistent with
her testimony at trial. She made a contemporaneous disclosure and appeared visibly
upset and shaken on the BWC video. DNA consistent with Railey’s profile was found
on a vaginal swab taken from the child, and Railey did not dispute that this DNA was
his. While Railey presented an argument that the DNA could have arrived on the
child’s vaginal area through secondary transfer, testimony from the State’s scientific
12 OHIO FIRST DISTRICT COURT OF APPEALS
witnesses undercut the viability of this theory. The remaining evidence against Railey
therefore readily supported the jury’s verdict. Any error the trial court may have made
in admitting the child’s mother’s statements on the BWC was therefore harmless.
Confrontation Clause
{¶40} In his first assignment of error, Railey also asserts that the admission of
the child’s mother’s statements on the BWC video violated his Sixth Amendment right
to confrontation, because the child’s mother had passed away by the time the trial
began.
{¶41} “We review objections to evidence based on the Confrontation Clause
de novo.” (Citations omitted.) Smith, 2019-Ohio-3257, at ¶ 10 (1st Dist.).
{¶42} As we explained in State v. Yeban, 2024-Ohio-2545, ¶ 47 (1st Dist.), “the
Confrontation Clause prohibits testimonial statements of a witness who did not appear
at trial unless he was unavailable to testify, and the defendant had had a prior
opportunity for cross-examination.” A threshold inquiry is therefore whether a
challenged statement is testimonial or nontestimonial, given that the Confrontation
Clause only bars the admission of testimonial statements absent the opportunity to
confront the declarant. State v. Akins, 2024-Ohio-1491, ¶ 24 (1st Dist.).
{¶43} While the Supreme Court has declined to set forth a precise test that
distinguishes testimonial from nontestimonial statements, several guideposts
separate the two. Statements made in the course of legal proceedings, like those made
under oath at a preliminary hearing or before a grand jury, are testimonial, as are
certain statements made in response to police interrogation when there is no ongoing
emergency and the primary purpose of the interrogation is to collect evidence for trial.
Id. at ¶ 24, 26. The key is that a testimonial statement is made “under circumstances
which would lead an objective witness reasonably to believe that the statement would
13 OHIO FIRST DISTRICT COURT OF APPEALS
be available for use at a later trial.” State v. Hudson, 2008-Ohio-1265, ¶ 40 (8th Dist.).
{¶44} Viewing the statements of the child’s mother and the circumstances
under which they were made, it is clear that they were nontestimonial. The child’s
mother’s statements were not directed at law enforcement officers or made in response
to police interrogation. Rather, Kneller directed her to finish the conversation outside,
thus dispelling the notion that police were attempting to record her phone call for later
use at a trial. Moreover, no evidence suggests that the child’s mother was aware her
statements were being recorded, undercutting any suggestion that she herself may
have been attempting to document evidence for future use. The statements instead
appear to be completely spontaneous and unprovoked by law enforcement.
{¶45} Under these circumstances, we cannot say that Railey’s right to
confrontation was violated.
{¶46} Accordingly, we overrule Railey’s first assignment of error.
B. Closing Arguments
{¶47} In his second assignment of error, Railey argues that he was denied a
fair trial due to prosecutorial misconduct because the State repeatedly referred to the
DNA recovered from the child’s biological samples as Railey’s DNA. In support of his
argument, Railey emphasizes that the DNA test results revealed only that the DNA
sample was consistent with Railey’s DNA, not that it was in fact Railey’s DNA.
{¶48} Railey takes issue with eight specific statements made by the State in its
closing argument (1) “We also know that because he left his DNA on [the child’s]
body,” (2) “The only reason Demetrius Railey’s DNA was in the folds of [the child’s]
labia is because he put it there,” (3) “It is his DNA they found,” (4) “It’s her and him.
That’s it. Not mom, not brothers, not sister. Her, her body, and Demetrius Railey,” (5)
“The only reason Demetrius Railey’s DNA showed up on [the child’s] body is because
14 OHIO FIRST DISTRICT COURT OF APPEALS
he put it there. He put his mouth on her genitalia,” (6) “So in this case we have the kit.
We have Demetrius Railey’s DNA on it and we have the victim’s DNA on it. And that’s
it. Okay?,” (7) “The only other profile is Demetrius Railey, our defendant. Okay?,” and
(8) “They’re able to develop a profile for Demetrius Railey.”
{¶49} Railey failed to object to the statements at trial. We therefore review
them solely for plain error. State v. Carter, 2017-Ohio-1328, ¶ 12 (1st Dist.) (“A
defendant’s failure to object to an allegedly improper statement by the prosecutor
forfeits all but plain error.”). To establish plain error, a defendant must demonstrate
that the outcome of the proceedings would have been different but for the alleged
misconduct. Id.
{¶50} Prosecutorial misconduct only creates error where it prejudices the
defendant by depriving him of a fair trial. State v. Smith, 130 Ohio App.3d 360, 366
(1st Dist. 1998). To determine prejudice in the context of prosecutorial misconduct,
the effect of the prosecutor’s actions must be taken in light of the entire trial. Hudson,
2008-Ohio-1265, at ¶ 22 (8th Dist.). Prosecutors are granted a certain level of latitude
during closing argument, particularly given that arguments are not evidence. Carter
at ¶ 12. We therefore evaluate a prosecutor’s statements considering the closing
argument in its entirety, rather than reviewing isolated statements taken on their own.
Id.
{¶51} Railey’s primary objection to the prosecutor’s closing argument is that
it overstated the significance of the DNA evidence by suggesting that that DNA
absolutely came from Railey, when the DNA profile was merely “consistent.” Railey
relies on State v. Metcalf, 2012-Ohio-674 (12th Dist.), to support his argument. In
Metcalf, the defendant was convicted by a jury of raping his 15-year-old daughter. Id.
at ¶ 1-2. Expert testimony established that, based on a Y-STR DNA test, the
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defendant’s DNA was consistent with DNA recovered from his daughter, but the State
argued in closing that the DNA was in fact the defendant’s. Id. at ¶ 7. The trial court
overruled the defendant’s numerous objections to this argument. Id. at ¶ 23.
{¶52} On appeal, the defendant argued that the trial court erred by allowing
the State to refer to the DNA sample as his DNA “when no such reasonable scientific
certainty existed,” and the Twelfth District agreed. Id. at ¶ 23, 27. But the court
characterized the prosecutor’s statements in closing as harmless. Id. at ¶ 31. This was
because the number of times the prosecutor improperly referred to the DNA as the
defendant’s was few and because the prosecutor had, at least some of the time,
correctly indicated that the sample was “consistent” with the defendant’s DNA rather
than absolutely his. Id. at ¶ 28, 31.
{¶53} The arguments made by the prosecutor in Railey’s case are similar to
those found to constitute harmless error in Metcalf in that they misstated the nature
of the DNA evidence. The State’s scientific witnesses only testified that the DNA
sample taken from the child’s vaginal area was “consistent” with Railey’s profile, not
that it was Railey’s DNA.
{¶54} Nonetheless, we cannot say that the prosecutor’s comments rose to the
level of plain error, because we do not believe the outcome of the proceeding would
have been different had the prosecutor’s closing more closely tracked the evidence.
We reach this conclusion in part because Railey’s defense counsel conceded that his
DNA was found on the child. He focused his efforts at trial on explaining secondary
methods of transfer, arguing that the DNA could have been placed on the child after
she used a towel that Railey had also previously used. Because Railey never disputed
that the DNA was his, he could not be prejudiced by the State’s characterization of the
DNA as his. The jury was also provided an instruction that the statements made
16 OHIO FIRST DISTRICT COURT OF APPEALS
during closing arguments were not to be considered as evidence. And, as we have
previously explained, the evidence against Railey was strong. Thus, although the
prosecutor’s closing argument should have been more faithful to the evidence, we
cannot say that plain error occurred in the State’s closing argument.
{¶55} We therefore overrule Railey’s second assignment of error.
C. Cumulative Error
{¶56} In his third assignment of error, Railey argues that cumulative error
denied him a fair trial.
{¶57} “The doctrine of cumulative error allows a conviction to be reversed if
the cumulative effect of errors, deemed separately harmless, deprived the defendant
of his right to a fair trial. The doctrine of cumulative error is inapplicable where there
are not multiple instances of harmless error.” (Cleaned up.) State v. Johnson, 2019-
Ohio-3877, ¶ 57 (1st Dist.).
{¶58} We have, at most, identified a single instance of harmless error in
Railey’s trial—the admission of the child’s mother’s statements as excited utterances.
We decline, however, to specifically label this decision by the trial court as error,
noting tension in the case law surrounding how the excited utterance exception is to
be applied. Compare Jones, 2012-Ohio-5677, at ¶ 130-131; Smith, 2002-Ohio-6659,
at ¶ 43-44. But even if this were error, a single instance of harmless error is insufficient
to create cumulative error. Johnson at ¶ 57.
{¶59} We overrule Railey’s third assignment of error.
III. Conclusion
{¶60} The admission of the child’s mother’s statements on the BWC video
after her death did not violate Railey’s rights under the Confrontation Clause, nor did
it rise to anything other than potential harmless error under Evid.R. 803(2).
17 OHIO FIRST DISTRICT COURT OF APPEALS
Statements made by the prosecutor in closing argument also did not amount to plain
error that deprived Railey of his right to a fair trial. We accordingly affirm Railey’s
conviction for rape of a child under 13.
Judgment affirmed.
ZAYAS, P.J., and BERGERON, J., concur.
Please note:
The court has recorded its entry on the date of the release of this opinion.